SL/S4/11/3/A SUBORDINATE LEGISLATION COMMITTEE AGENDA 3rd Meeting, 2011 (Session 4) Tuesday 6 September 2011 The Committee will meet at 2.30 pm in Committee Room 6. 1. Instruments subject to affirmative procedure: The Committee will consider the following— Construction Contracts (Scotland) Exclusion Order 2011 [draft]; Scheme for Construction Contracts (Scotland) Amendment Regulations 2011 [draft]; 2. Instruments subject to negative procedure: The Committee will consider the following— Plastic Kitchenware (Conditions on Imports from China) (Scotland) Regulations 2011 (SSI 2011/282); Pollution Prevention and Control (Scotland) Amendment Regulations 2011 (SSI 2011/285); Local Government (Allowances and Expenses) (Scotland) Amendment Regulations 2011 (SSI 2011/304); Plant Health (Import Inspection Fees) (Scotland) Amendment Regulations 2011 (SSI 2011/311) 3. Instruments not subject to any Parliamentary procedure: The Committee will consider the following— Damages (Scotland) Act 2011 (Commencement, Transitional Provisions and Savings) Order 2011 (SSI 2011/268 (C.20)); Local Democracy, Economic Development and Construction Act 2009 (Commencement No. 1) (Scotland) Order 2011 (SSI 2011/269 (C. 21)); Private Rented Housing (Scotland) Act 2011 (Commencement No. 1 and Saving Provision) Order 2011 (SSI 2011/270 (C. 22); Local Electoral Administration (Scotland) Act 2011 (Commencement) Order 2011 (SSI 2011/277 (C. 23)); Public Services Reform (Scotland) Act 2011 (Commencement No. 5) Order 2011 (SSI 2011/278 (C.24)); SL/S4/11/3/A Wildlife and Natural Environment (Scotland) Act 2011 (Commencement No. 1) Order 2011 (SSI 2011/279 (C. 25)); Wildlife and Natural Environment (Scotland) Act 2011 (Commencement No. 1) Amendment Order 2011 (SSI 2011/287 (C. 26)); Act of Sederunt (Rules of the Court of Session Amendment No. 4) (Miscellaneous) 2011 (SSI 2011/288); Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendmetns) (No. 2) 2011 (SSI 2011/289); Act of Adjournal (Criminal Procedure Rules Amendment No. 5) (Miscellaneous) 2011 (SSI 2011/290); Local Democracy, Economic Development and Construction Act 2009 (Commencement No. 2) (Scotland) Order 2011 (SSI 2011/291 (C. 27)); Act of Sederunt (Rules of the Court of Session Amendment No. 5) (Causes in the Inner House) 2011 (SSI 2011/303); Act of Sederunt (Regulation of Advocates) 2011 (SSI 2011/312; International Criminal Court (Libya) Order 2011 (SI 2011/1696); Consultation on the Draft Student Fees (Specification) (Scotland) Order 2011. Irene Fleming Clerk to the Subordinate Legislation Committee Room T2.60 The Scottish Parliament Edinburgh Tel: 0131 348 5212 Email: [email protected] SL/S4/11/3/A The papers for this meeting are as follows— Agenda Items 1, 2 and 3 Legal Brief (private) SL/S4/11/3/1 Instrument Responses SL/S4/11/3/2 SL/S4/11/3/2 SUBORDINATE LEGISLATION COMMITTEE 3rd Meeting, 2011 (Session 4) Tuesday 6 September 2011 Instrument Responses INSTRUMENTS SUBJECT TO THE AFFIRMATIVE PROCEDURE The Construction Contracts (Scotland) Exclusion Order 2011 (draft) On 19 July 2011 the Scottish Government was asked: 1. Headnote: the usual style, as indicated in the Scottish Statutory Instrument Practice (SSIP) and the draft Scottish Statutory Instrument Drafting Manual (SSIDM), states that the instrument has been laid “for approval by resolution of the Scottish Parliament.” The highlighted words are omitted. 2. Extent provision: this Order is made in terms of section 106A(3) of the Housing Grants, Construction and Regeneration Act 1996, which was inserted by section 138(3) of the Local Democracy, Economic Development and Construction Act 2009. Section 106A(3) replaces section 106(1)(b), which is repealed. Section 106A(3) confers power directly on the Scottish Ministers. The power enables the Scottish Ministers to make orders, so far as extending to Scotland, providing that all or part of Part II of the 1996 Act is not to apply to specified descriptions of construction contracts. This appears to fall within the second category of Westminster Act enabling powers mentioned in para. 3.73 of SSIP. As the power is conferred on Ministers so far as extending to Scotland, it appears that an extent provision in the Order itself is not required. The Scottish Government responded as follows: The explanations and comments in relation to the omission of “resolution of” in the headnote and inclusion of an extent provision as outlined for the Scheme for Construction Contracts (Scotland) Amendment Regulations 2011 apply also in relation to this instrument. The Scheme for Construction Contracts (Scotland) Amendment Regulations 2011 (draft) On 19 July 2011 the Scottish Government was asked: 1. Headnote: the usual style, as indicated in the Scottish Statutory Instrument Practice (SSIP) and the draft Scottish Statutory Instrument Drafting Manual (SSIDM), states that the instrument has been laid “for approval by resolution of the Scottish Parliament.” The highlighted words are omitted. 2. Extent provision: regulation 1(3) provides that the Regulations extend to Scotland only. However, the principal Regulations (the Scheme for Construction Contracts (Scotland) Regulations 1998) already contain an extent provision at regulation 1(2). 1 Paragraph 3.75 of SSIP indicates that an extent provision in the amending Regulations is accordingly not required. 3. Regulation 2: the word “In” appears to have been omitted immediately before “Regulation 4(b)”. 4. Explanatory Note: the Scheme for Construction Contracts (Scotland) Regulations 1998 are given the shorthand reference “the Scheme”. However, regulation 5 of those Regulations provides that the provisions in the Schedule to those Regulations are to be the Scheme for Construction Contracts (Scotland). This is reflected in regulation 1(4) of the amending Regulations, where “the Scheme” is defined as being the Scheme contained in the Schedule to the principal Regulations. The references to “the Scheme” in the Explanatory Note are accordingly confusing, in that they suggest that the principal Regulations themselves (rather than the Schedule to those Regulations) constitute the Scheme. They are also inconsistent with the definitions in the principal and in the amending Regulations. The Scottish Government responded as follows: 1. We accept that the words “resolution of” should have been included in the headnote to the instrument and that as a result of this omission the headnote does not strictly accord with the terms set out in SSIP. This was, of course, an error and not a deliberate omission. Whilst ideally the text should have complied fully with SSIP we do not consider that this error affects the validity of the instrument and do not consider it necessary to withdraw the instrument as a result. 2. We have considered and agree with your observation in relation to the extent provision in this case and thank you for drawing this to our attention. Its inclusion though, whilst unnecessary, does not alter the legal effect of the instrument and we do not consider amendment to be necessary. 3. We note and agree that regulation 2 should have commenced with the word “In”. We consider the omission to be minor and that in the interpretation of this provision there is no ambiguity or uncertainty of meaning. Accordingly we do not consider it necessary to withdraw the instrument but will investigate whether this can be addressed as a matter of printing. 4. In relation to the references to “the Scheme” in the explanatory note to this instrument; although “the Scheme” is strictly the Schedule to the Scheme for Construction Contracts (Scotland) Regulations 1998 and not, as you identify, the Regulations themselves, the readers of this instrument will be those in the construction industry who are familiar with “the Scheme” and who will readily understand the nature and effect of the instrument as set out in the Explanatory Note. As a result we do not consider that any confusion would be caused. 2 LAID ONLY INSTRUMENTS, NOT SUBJECT TO ANY PARLIAMENTARY PROCEDURE The Local Democracy, Economic Development and Construction Act 2009 (Commencement No. 1) (Scotland) Order 2011 (SSI 2011/269) and The Local Democracy, Economic Development and Construction Act 2009 (Commencement No. 2) (Scotland) Order 2011 (SSI 2011/291) On 19 July the Scottish Government was asked: 1. To explain why no day has been appointed for the coming into force of Part 5 of Schedule 7 to the Local Democracy, Economic Development and Construction Act 2009 (“the 2009 Act”), when the Orders do so for the relative repeal provisions found in section 138(2), section 139(1) and section 143(2). 2. To explain how it intends to bring Part 5 of Schedule 7 to the 2009 Act into force. 3. Given that section 149(2) of the 2009 Act enables the Scottish Ministers to appoint a day for the coming into force of Part 8 of that Act so far as extending to Scotland, to explain why article 2 of the No. 2 Order instead provides for the coming into force of sections 139 to 145 of the 2009 Act, rather than appointing a day as article 2 of the No. 1 Order does in relation to section 138. The Scottish Government responded as follows: Questions 1 and 2 The Scottish Government notes the repeal provisions provided for in Part 5 of Schedule 7 to the Local Democracy, Economic Development and Construction Act 2009 (“the 2009 Act”) and thanks the Committee for drawing this to its attention. Whilst commencement of the identified sections of Part 8 the 2009 Act (namely section 138(2), section 139(1) and section 143(2)) secure the repeal of the provisions set out in Part 5 of Schedule 7 the Scottish Government considers that as a matter of good practice it should commence Part 5 of Schedule 7 to the 2009 Act. Accordingly the Scottish Government proposes to make a further commencement order for this purpose. Question 3 The Scottish Government notes the difference in style between these two Commencement Orders and thanks the Committee for its observation. The Scottish Government appreciates the benefit of consistency in these matters, however, the Scottish Government considers that the legal effect is the same in each case.